Woman Wins Right to Criticize Surgeon on Website

Scoopy writes "The website of a cosmetic surgery patient critical of her Sacramento surgeon's work is protected free speech, an appeals court said in an opinion that could have statewide implications. The website contains before and after photographs of 33-year-old Georgette Gilbert, who said the surgery left her with one eyebrow higher than the other and a surprised look permanently affixed to her face. The website was challenged in a defamation suit filed by surgeon Jonathan Sykes, a prominent professor and television commentator on the subject of cosmetic surgery. Although the Sacramento-based 3rd District Court of Appeal only mentions Sykes, the opinion suggests that others who use 'hot topics' of public interest in their advertisements and promotions may shed protections against defamation afforded to ordinary citizens."

Comments

According to courtroom reporters...

[CRCulver]

...The woman looked very surprised at the verdict.

Re:According to courtroom reporters...

[magicchex]

Honestly, she looked fine before the surgery. She claims she was at a low point in her life and so on, and didn't even consider surgery till only 3 weeks before she got it. What do you expect when you make such a serious decision on such short notice while admittedly depressed?

Re:According to courtroom reporters...

[fredrated]

"What do you expect when you make such a serious decision on such short notice while admittedly depressed?"

Are you saying that under these circumstances one should expect a shitty job? What, does your depression somehow affect the surgeon?

Re:According to courtroom reporters...

[darkonc]

Well, as a general rule, I'd expect that the "director of facial plastic and reconstructive surgery at UC Davis Medical Center." is, at worst, not likely to be a fly-by-night quack.

No matter how good he is, however, a bad result is always a possibility (even if remote). That this woman ended up on the short end of the stick still doesn't affect the validity of her tail -- if only as a warning of what really can go wrong if you're unlucky. I know one woman who is intensely ashamed of her breasts as a result of the side effects of augmentation surgery. She will no longer wear revealing clothing, because it's too likely to expose the scarring.

That's not the kind of information that you're likely to get in the advertising brochures, or the 'reality television' shows that ("incidently") highlight a different plastic surgeon every week.

Re:According to courtroom reporters...

[balloonhead]

surgeons say that if you haven't had enough complications, you haven't done enough surgery. They are a statistical thing. The guy clearly is well qualified, and perfectly capable of doing the surgery, technically.

The difficulty here is whether or not she can complain about it - and I would say that she can, but not the way she has done.

Calling it a 'botch' implies that it was done badly. The only way to check this is to look at perhaps the last 1000 patients and see if his results are acceptable or not. Medical confidentiality would mean this would have to be done by internal audit, unless those patients volunteered (which would likely mean all the unhappy customers come forward, skewing results).

Maybe if she could prove he was drunk during the operation or something that would also qualify.

As it is, I think it is fair for her to put up before and after pictures, say who did the surgery, say that she is unhappy, and really do all sorts of free speech things that don't amount to libel.

What if he has the best results of any surgeon, ever, and this is the first 'poor' outcome? That hardly makes it a botch - just her more unlucky.

About 2% of medical negligence cases are found against the doctor. There are often a lot of emotional issues - and she has admitted to these.

I will assume that she also signed an informed consent document which listed all the possible adverse outcomes - such as disfigurement, scarring, infection, death, spontaneous combustion. Maybe she should have weighed up those small but significant risks beforehand a bit more.

Re:According to courtroom reporters...

[balloonhead]

The last 1000 patients tell you if his outcomes are as expected, better than expected, or worse than expected.

As I already said, complications are a statistical fact regardless of whether the surgeon makes mistakes or not.

If he did the surgery expertly, and the poor outcome was for reasons other than what was in his control - then that's simply not his fault.

This has no comparison to driving. This is accepted medical fact, studied at length by a great number of researchers, with consistent findings of rates of infection in a number of circumstances.

If she had died unexpectedly as a result of the anaesthetic - statistically a 1 in 250 000 chance - then that's out of his control.

If she had a post-operative infection - for this surgery about a 2-5% rate could be expected (I would expect her to be closer to the 2%) - then as long as he has followed accepted practice (aseptic technique, good wound closure, not too heavy on the diathermy, good haemostasis, a few others) - then again, this is a statistical fact.

If we find that he has a 20% infection rate compared to his peers, who have a similar case load and all have a 2% infection rate - then we can raise issues of incompetence.

This is long established. Ultimately, I also have no idea whether he was at fault or not - all I am saying is that sometimes, despite the best will and ability in the world, the outcomes are not ideal, and this is what needs to be established before accusing him of anything.

Re:According to courtroom reporters...

[saboola]

That this woman ended up on the short end of the stick still doesn't affect the validity of her tail

He added a tail too? No wonder she is pissed.

Re:According to courtroom reporters...

[Anonymous Coward]

For an extreme example: if a meteorite punches through the roof of a bus, killing the driver instantly, and thereby causing the bus to plunge over an embankment a few seconds later, then who is at fault?

That's EASY. You clearly don't have much imagination.

1. NASA, for failing to predict and warn of the meteorite impact.
2. Congress, for failing to fund meteorite monitoring and prediction services.
3. The public, for failing to elect a Congress that would fund meteorite prediction services.
4. The manufacturer of the bus, for failing to include a roof that could withstand a meteorite impact.
5. Materials scientists, for failing to invent a cheap bus-roof material strong enough to withstand meteorite impacts.

The list goes on and on...

Link to the website

[magicchex]

Here's a link to the actual website, http://www.mysurgerynightmare.com/

Re:Link to the website

[Whiney Mac Fanboy]

Sad thing about that website is that she looked pretty good in the 'before' photo. People should realise the risks of any surgery before they make minor cosmetic changes to their appeaarance.

Also, TFA is reg-required (Do I really want to spend x minutes signing up & agreeing to God know what on a paper I'll never read again?). So, for your reading pleasure the story from metnews.

Lastly, shouldn't that headline read: Woman's Right to Criticize Surgeon on Website upheld

Re:Link to the website

[timeOday]

People should realise the risks of any surgery before they make minor cosmetic changes to their appeaarance.

Well it's going to be pretty hard to learn about the risks if everybody with a complaint gets muzzled, now isn't it? This lawsuit has the direct effect of protecting peoples' right to learn about the risks.

But I guess we can't have that, now can we? It might be bad for business.

To be honest I don't even see how this case went to trial. How can we claim to have freedom of speech if you can't even complain about somebody doing a poor job? If she had knowingly made a factually false claim, then I could see it.

WTF

[WiiVault]

Seriously how the hell could this not be construed as free-speech? I mean she is simply providing information on a service she is unhappy about in the hopes of educating others. Jeez I'm getting more and more afraid to open my mouth every day.

Re:WTF

[slamb]

Seriously how the hell could this not be construed as free-speech? I mean she is simply providing information on a service she is unhappy about in the hopes of educating others. Jeez I'm getting more and more afraid to open my mouth every day.

According to the metnews story, the court decided (and the appeals court did not dispute) that the information she is providing is not true. Among other things, her "after" picture was also after four other surgeries from different doctors. So the information was false and damaging. The appeals court said that in this circumstance, it can't be considered defamatory unless the doctor proved her intent was malicious, and he hadn't done that. Apparently the woman's just crazy...

For those who do not want to register

[afaik_ianal]

The Web site of a cosmetic surgery patient critical of her Sacramento surgeon's work is protected free speech, an appeals court said in an opinion that could have statewide implications.

The Web site, www.mysurgerynightmare.com, contains before and after photographs of 33-year-old Georgette Gilbert who said the surgery left her with one eyebrow higher than the other and a surprised look permanently affixed to her face.

The Web site was challenged in a defamation suit filed by surgeon Jonathan Sykes, a prominent professor and television commentator on the subject of cosmetic surgery.

Although the Sacramento-based 3rd District Court of Appeal only mentions Sykes, the opinion suggests that others who use "hot topics" of public interest in their advertisements and promotions may shed protections against defamation afforded to ordinary citizens.

"The decision makes it easier for professionals to get defamed and unable to defend themselves," said Daniel L. Baxter, Sykes's lawyer.

First Amendment attorney Charity Kenyon agrees that the decision's reasoning could be applied to lawyers, optometrists, Realtors and other professionals.

"The opinion is good protection for consumers who want to express opinions about services they receive, but professionals who promote themselves may have this burden if they think they have been defamed," Kenyon said.

The court decision, which was released Jan. 26, may be binding on all California counties if it's not overturned by the state Supreme Court. According to the 32-page opinion, which can be viewed here, Sykes immersed himself so much in the public debate over the merits of cosmetic surgery that he became a public figure in the subject.

Sykes, a UC Davis Medical Center professor, is also an author and has written numerous articles that have appeared in medical journals and beauty magazines. He has appeared on local television shows "touting the virtues" of cosmetic and reconstructive surgery, the decision said.

"In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic. The number of people, especially women, who have had minimally invasive cosmetic surgery has grown exponentially in the past several years," said the opinion, written by Justice M. Kathleen Butz.

"Sykes asserts that statements on the Web site do not contribute to the public debate because they only concern Gilbert's interactions with him. He is wrong," said Butz, who was joined in the opinion with justices Ronald B. Robie and Tani G. Cantil-Sakauye.

Baxter said that several statements and representations Gilbert made on her Web site were not true or were misleading.

Baxter cited, for example, the statement Gilbert makes with her before and after photos: "I was told by my doctor that this was a good result - that I looked better after his surgery - what do you think?" Baxter said that when Sykes saw Gilbert, about 2 1/2 months after the surgery, he indicated that she was improving but "never made any indication relative to that picture, or how she was doing five months out."

Gilbert's online comments also make it sound as if she was an unwitting patient who was pushed into plastic surgery, Baxter said. In fact, he said, she "directed (Sykes) to be very aggressive in carrying out the procedures."

Gilbert's lawyer, William L. Brelsford, said true statements and personal opinions are not libelous under the Constitution's First Amendment. The decision, he said, is applying an old law to a new mode of communication.

"Protected public debate is being extended to the Internet," Brelsford said.

Gilbert posted her Web site early in 2005, a year after she filed a medical malpractice suit against Sykes. On the site, she offers advice about finding the "right" surgeon so that others can benefit from her "misfortune."

She has a contact page where readers can share their experiences.

Sykes counter-sued Gilbert claiming he was defamed, suffered emot

Title Correction:

[the_REAL_sam]

You mean to say "woman defends right to criticize surgeon on website." She cannot win what she already had.

Why surgery in the first place?

[gnurfed]

Slightly off topic, but what's really sad in this story is that the woman was pretty BEFORE the surgery. So there was really no reason for her to go under the knife in the first place. We live in a scary world where people strive to look unnatural (though this woman probably didn't get the unnatural looks she wanted).

That said, it's great that we have plastic surgery for patients with actual disfigurements.

Silly, silly girl

[BigBadRich]

It's amazing what people with low self-esteem will do to themselves. In this case she starts out (in my opinion) quite a gorgeous woman, and finishes looking like a cross between Cher and Marilyn manson (photos).

You'd think Michael Jackson would be enough of a deterrent for most people, but I guess you can never underestimate the power of low self-esteem.

Patient's privacy?

[MDMurphy]

The part I've wanted to see discussed are the doctors rights to publicly rebut a site that complains about them. Under strict medical privacy laws it's not like a doctor could ( or should ) reveal medical details or photos in a public forum. So if a patient complains and sets up a web site, does that absolve the doctor in question from any requirements for maintaing confidentiality? When I heard about this and other similar sites, that was one of my first questions. If not, from a public opinion point of view they're screwed.

I firmly believe that a patient should have the right to critisize their doctor, but I also believe the doctors should have the ablitly to defend themselves. I'd have liked to have seen part of a ruling that said they were no longer required to keep confidentiality for that particular patient.

If the doctor is not in a position to put up a web site, with pictures and inimate details of a patient who's gone public, then that person should be refrained from going public. Since that's pretty hard to enforce retroactively the only recourse seems to view the patient's public proclamations as relinquishing all privacy rights with respect to the doctor or hospital involved.

The surgeon may have a point...

[Excelcia]

I've visited the web site in question, and I believe the surgeon has a point. It looks like the woman is using some of the same techniques shady businesses use to make before/after photos look different, but in reverse. These are:

- One photo being done in a natural setting, one artificial.
- One photo with a happy expression, one without
- One photo with good lighting, one with very stark.
- One photo with makeup, one without

Some of this is related, but look. She insists one eyebrow is higher than the other and she is left with a permanent "surpised" look. This is quite possible, the eyebrow position can give that look, but raising the eyebrows would not have a significant effect on how wide her eye lids are open. Notice in the second photo she exadgerates her "surpised" look by opening her eyes as wide as possible. Add to that the camera in the before photo is slightly above her, and the angle difference adds to the effect. She is smiling in the first photo, which tends to close the eyelids a little and adjusts the eyebrow position.

The makeup makes quite a difference to shading, and the after photo is in much more stark contrast, which elimates facial details.

Also remember that the woman has filed a malpractice suit and stands to gain financially from seeming to look badly now.

However the court ruled, I think the surgeon had a point.

Re:The surgeon may have a point...

[grimJester]

Her face is much longer in the second pic (distance between hairline and chin compared to width of face). The pic could be photoshopped as well. The face in the left pic is 157 pixels from side to side, the right 140. Length goes from 225 to 240. Ratio goes from 1,43 to 1,71. Using the width of my own face as an approximation, it looks like that woman had her face lenghtened by two full inches. If you try to figure out what part(s) of her face could have been stretched this much, the conclusion would pretty much be that the picture has been evenly stretched. I mean, even her forehead is noticabely higher after surgery. Skull extension?

The pic looks fake.

Re:The surgeon may have a point...

[Jah-Wren Ryel]

While you have a point, it is mitigated by the circumstances surrounding the photos.

The entire point of make-up being to hide imperfections, it is unlikely that she would have a "before" photo without make-up, especially if she had low self-esteem about her looks. If she had such a clinical "before" photo of her own, there would be plenty of people arguing that it was proof of premeditation to sue the doctor.

If she were to wear make-up in the "after" photo it would also mitigate the effects of the surgically created imperfections which would not help her point at all, she wants to demonstrate the problem, not cover it up. Also, one of the reasons women get such work done in the first place is to reduce their perceived need to wear make-up, so if the surgery had gone well, she would not be wearing as much make-up as she had been before the surgery.

Similarly it is unlikely that she would have a "before" photo that wasn't happy, people don't like to take pictures of unhappy times in their lives. You can't expect her to pose for an "after" photo and look happy - she's taking the photo specifically because she is unhappy, it would be ridiculous to expect her to be all smiles about it. Because she feels extremely unhappy with her new looks taking a picture, even in an attempt to get restitution or correction, is going to be an unpleasant experience for her.

Camera and angle and lighting are much more likely to be the result of the amateur nature of both photos than any sort of explicit plan to manipulate the viewer.

So, while I agree that her presentation is not necessarily evenhanded, I really doubt that it was calculated. At the very worst, she probably picked one of her better looking "before" pics and one of her worst "after" pics, but that's no different from a plastic surgeon who does the reverse in his marketing materials.

Really?

[greg_barton]

...the surgery left her with one eyebrow higher than the other and a surprised look permanently affixed to her face.

Fascinating...

Other side effect

[edwardpickman]

The other side effect of the surgery was due to the tightly stretched skin she can't close her eyes when she's sitting down.

Reconstructive Surgery NOT Benefitted.

[Web Goddess]

gnurfed said, "That said, it's great that we have plastic surgery for patients with actual disfigurements."

My experience is that reconstructive surgery is deteriorating. Plastic surgeons are now learning to do cosmetic procedures, rather than reconstructive. I have a genetic defect with my eyelids, and had three surgeries as a child. Now decades later, I could use additionaladvanced reconstructive surgery to give my eyes a more reasonable appearance.

Eyes are very important to our facial expressions, and although my friends think I look lovely, strangers sometimes do an unpleasant double-take when they see me.

So I wanted to give it another shot, figuring reconstruction has improved since I was a poor child receiving free care.

The Stanford geneticist recommended a Stanford specialist and I went to see him. The waiting room was filled with literature about "eye lifts" for regular, aging people. I consult with the doctor (and I secretly recorded the conversation) and he did his utmost best to talk me out of any surgery at all. I could tell he was floundering.

I provided him records of what had been done, and suggested w2hat could be done, and made clear that I was not expecting miracles, just a slight improvement would be worth it.

He called in his senior, and they spent the next four minutes trying to pass the buck and make the other person do the surgery. The way we left it, was they were going to "contact my insurance" and I never heard back, despite sevferal phone calls.

These were Stanford Medical Center professionals, recommended by the geneticist who deals with birth defects, and THEY only wanted to do normal eyelid lifts. I was so disheartened, I never tried again.

GRR.

IMO way too fscking much money is spent on frivolous surgery.

My story, and I'm too tired to be concise so I'll just... submit it.